“The oppressed, instead of striving for liberation, tend themselves to become oppressors.”[1]
India’s struggle for independence perfectly illustrates the power which words have in arousing societal consciousness and encouraging masses to fight against tyranny. In the entire struggle against the British regime, the morale of our countrymen was kept ignited and fueled by the powerful and inspiring words of our freedom fighters. The wave of independence “mass movement” was so strong that the Britishers had to ultimately succumb to its robustness and grant India its liberation. Even today, power of words as a tool to raise social awareness cannot be undermined. In fact, with the advancement of technology, this weapon has become more potent and able to penetrate even the deepest recesses of the world. Information today is merely a click away. In fact, circulation of ideas or information, good or bad, may be dispersed to millions in just a few second’s time.
Significantly, India’s independence ensured that all its citizens enjoy equally, the freedom of speech and expression. Freedom of speech and expression is universally considered as one of the significant attributes of a democratic State. No doubt, the same is necessary not only for dissemination of ideas and information, rather, to curb unrestricted exercise of power by State. The Constitution of India (the Constitution) guarantees to all its citizens, inter alia, freedom of speech and expression under Article 19(1)(a)[2] thereof. However, such freedom is not untrammelled or unrestricted. In fact, Article 19(2)[3] of the Constitution confers power on State to impose reasonable restrictions in the exercise of this freedom, “in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence”. Significantly, the Supreme Court[4], though, declaring that the provisions of Article 19(1)(a) of the Constitution must be accorded a broad canvas, however, clarified that the “freedom of speech and expression as enshrined under Article 19(1)(a) of the Constitution is not absolute in view of Article 19(2) of the Constitution”. It is further settled law, the freedom conferred under Article 19(1)(a) of the Constitution includes a right to express dissenting opinion. In fact, as per the Supreme Court[5], “it is only the maker of an unpopular and dissenting opinion who would need a cover or insulation. A popular or accepted opinion, naturally would not require any protection”.
One of the facets of the rights conferred under Article 19(1)(a) of the Constitution includes the freedom and liberty of press; electronic and print media. In Hindustan Times v. High Court of Allahabad[6], the Supreme Court, while acknowledging the indispensable role of press/ media in a democracy, observed:
- … The impact of media is far-reaching as it reaches not only the people physically but also influences them mentally. It creates opinions, broadcasts different points of view, brings to the fore wrongs and lapses of the Government and all other governing bodies and is an important tool in restraining corruption and other ill-effects of society. The media ensures that the individual actively participates in the decision-making process.
Undoubtedly, this is the reason why media is considered as the fourth pillar of democracy. Pertinently, with the advancement of technology, electronic and print media are no longer the only modes of broadcasting different point of views. In fact, with increased access to various electronic devices and awareness about internet, “social media” has emerged as one of the important tools for such purpose.
Social media primarily includes interactive computer and internet-mediated technologies, meant for sharing and discussing information. Though these technology-based applications may not be meant exclusively for news and facts dissipation, however, have proved to be an effective tool for circulation of ideas, knowledge, personal and professional data, etc. At the same time, these applications and social media platforms have demonstrated themselves as powerful tools for spreading awareness on current and contentious issues. Accordingly, they have proved to be effective in formulating opinions and invoking mass condemnation against several acts of injustice and subjugation. In the context of these movements, the words “calling out” or “callout” have gained popularity on social media. These words simply mean publicly denouncing or criticising a person or behaviour. In other words, calling out involves[7]; censuring someone about something they have said or done and challenging them to explain it.
Dr Martin Luther King, Jr. once remarked, “The ultimate tragedy is not the oppression and cruelty by the bad people but the silence over that by the good people.” Undoubtedly, when the situations demand, it becomes incumbent on the society to collectively speak up against injustice and suppression. Such collective voices against oppression may be in the form of a peaceful protest, candle light vigils, raising awareness though media/social media and the most recent, calling someone out on public/social media platforms. Pertinently, the right to a peaceful protest has been recognised as one of the fundamental rights by the Supreme Court. As per the Court[8], “Organised, non-violent protest marches were a key weapon in the struggle for Independence, and the right to peaceful protest is now recognised as a fundamental right in the Constitution.”
Similarly, in Mazdoor Kisan Shakti Sangathan v. Union of India[9], while reiterating that right to protest is one of the fundamental rights, the Supreme Court¸ inter alia, observed that the same, “is crucial in a vibrant democracy like India but more so in the Indian context to aid in the assertion of the rights of the marginalised and poorly represented minorities”. Therefore, seen in this context, the importance of addressing serious issues, which may be in the form of calling out/callout, cannot be overstated. The underlying idea behind calling out/callout can, therefore, reasonably be deduced to promote awareness and consequent cooperative actions on serious issues through a public platform. This process, simultaneously, involves appealing to the conscience of the wrongdoers and/or to reprimand such individuals/wrongdoers for their actions and to explain their conduct, publicly.
In past, there have been several instances of calling out/callout on social media platforms. Illustratively, the Me Too (or #MeToo) movement[10] against sexual harassment and sexual abuse gained momentum across world, commencing October 2017. This movement began with the exposure of several sexual abuse allegations against Harvey Weinstein, American former film producer. This was followed by widespread use of phrase and hashtag in similar manner across the globe, by several individuals, to publicise instances of sexual offences committed by their perpetrators. Quite recently, with the atrocities and incidents of police brutalities against the coloured/black citizens of America, #BlackLivesMatter[11] movement has gained impetus. Undeniably, such massive movements, universally, have proved to be quite productive in addressing serious social evils and motivating the oppressed to come forward with their concerns. Further, it is quite comprehensible that these movements, which are executed primarily through social media platforms, act as stimulus to a victim to put forth his/her story, online, which he/she may often hesitate to do so, in person.
However, not all instances of social media callouts are based on sincerity or genuineness rather, the speed with which people jump to conclusions, may often result in these mass actions being tarnished with biasness, prejudices and motivation. Unfortunately, there have been several instances where hasty actions/callouts on social media have resulted in serious tragedies; including incident of suicides by individuals who were wrongly roped into false allegations. It is frequently observed that once a call-out/condemnation is posted/made by an alleged victim online, within a second’s time, the same gets widely publicised. In several such instances, such posting is followed by mindless forwarding of such messages/posts to as many people as possible; posting comments expressing sympathy towards such victims and censuring the perpetrator, attempting to identify the named culprits and in extreme case, resorting to violence by public against the named perpetrator by taking law machinery in hand. Regrettably, such ill-actions not only violate the purpose behind such social medial censures, rather, highlight the societal tendency to reprimand without undertaking any prior verification. The same is nothing but another form and illustration of media trial, prejudicing the minds of masses and condemning an alleged convict without affording judicial recourse.
Indian judiciary has time and again cautioned against the practice of media trial. In fact, the Supreme Court[12] has specifically observed, “trial by press, electronic media or public agitation is the very antithesis of rule of law. It can well lead to miscarriage of justice”. Simultaneously, courts have consistently condemned the practice of individuals, taking law into their own hand, by holding the same as violative of “rule of law”. In this regard, the Punjab and Haryana High Court[13], observed:
- … [W]here individuals take the retribution decision in their own hands, it could trigger a desire for further retribution in all those sanctioned excessively or wrongfully, which could lead to a vicious circle that can easily spiral out of control. The result would be dangerous blood feuds. Such “vigilantism” is also a reflection of legitimacy of the State as a whole. Only when individuals respect the criminal justice system and its legitimacy, they will continue to obey the law themselves.
Therefore, it can be easily appreciated that mindless and hasty actions, including social media censures and resorting to physical violence against alleged perpetrators based on such callouts, are antagonistic to principles of democracy and rule of law on which our nation is built.
In the context of forwarding news/information on social media platforms, inter alia, through WhatsApp, the High Court of Madras in S. Ve. Shekher v. Inspector of Police[14] held, “[f]orwarded message is equal to accepting the message and endorsing the message” The Court further acknowledged that where messages about certain incidents/acts are forwarded by celebrity and persons of social stature, “the common public will start believe it that this type of things are going on. This sends a wrong message to the society….” Clearly, a degree of caution and responsibility is obligatory on individuals before accepting, endorsing and forwarding a view on social media platforms as a mindless exercise of power which social media grant, may lead to serious repercussion.
Pertinently, the High Court of Delhi in Ashish Bhalla v. Suresh Chawdhary[15], recently, held that an administrator of an online platform cannot be made liable for defamation even if any, by the statements made by a member of the group. Significantly, though, the judgment was pronounced in the case of publication of defamatory material online, observations made therein may reasonably be extended in cases where a group administrator had no role in dissipating fake news and hate messages online.
Significantly, there are several provisions under law, meant for curbing the practice of spreading hate news, defamatory and scandalous material, etc. Under the Penal Code, 1860 (IPC), the offence of defamation[16] is punishable[17] with a term which may extend to two years, or with fine, or with both. Punishment for printing or engraving matter known to be defamatory and sale of printed or engraved substance containing defamatory matter is provided under Sections 501[18] and 502[19] IPC, respectively. At the same time, sale/advertisement/publication, etc. of obscene books, materials, pornographic materials, etc. is punishable in terms of the provisions of Sections 292-294 IPC[20]. The Information Technology Act, 2000 (the IT Act) provides penalty for offence(s) of dishonestly receiving stolen computer resource or communication device [under Section 66-B[21]); identity theft (under Section 66-C[22]); cheating by personation by using computer resource (under Section 66-D[23]); violation of privacy (under Section 66-E[24]); publication or transmission of material containing sexually explicit act, etc., in electronic form (under Section 67-A[25]); publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form (under Section 67-B[26]), etc.] Unfortunately, despite such wide assortment of statutory and penal provisions, instances of wrongful labelling and denunciation of individuals through social media platforms is rapidly increasing.
As responsible members of a society, it becomes imperative for each such member to devote some time and effort in reasonably analysing social media callouts, before expressing their opinion and taking action on the same. No doubt it is a duty of each and every individual to be vigilant and raise voice against exploitation. However, it is not to be lost sight of that any such action or remark, which results in convicting and sanctioning another individual without a fair trial and/or affording an opportunity to present his/her case, violates the principles of natural justice and rule of law. Understandably, under such circumstances, the path to be treaded upon is quite grim for the reason that the cost of any negligence may be someone else’s life. Further, calling out does not envisage reprimanding each and every conduct of another’s or taking hasty actions, based on misinformation and preconceptions. In fact, the power which social media platforms accord, must be utilised with great caution and circumspection. It is further to be not lost sight of that a majority of the population in our country is still susceptible to manipulation, unfortunately, due to several social, religious, economic and political factors. Therefore, the duty of care commences from the stage when any floating ideas/thoughts/posts are encountered on social media platforms, culminating to a decision on the actions to be adopted on such information. Further, callout as a device is not to be utilised for bullying the alleged accused who may be unable to response to such summons due to variety of reasons such as fear, mental trauma, hesitation, etc. At the same time, absence of any such response from the person called out must not in all situations be considered as an admission of guilt on the part of alleged perpetrator. Simultaneously, callouts and various other forms of collective reprimand must in no case be utilised to pronounce a judgment and/or execute a consequent sentence, in violation of mandate of law. Understandably, callout, as a weapon is a double-edged sword and needs to be wielded carefully. It is neither a device to turn an oppressed into an oppressor nor a mode of collective bullying. As Brian Jacques once remarked, “Any weapon is a good weapon as long as ye can use it with honour and skill.”
* Advocate, Delhi High Court.
[1] Paulo Freire.
[2] “19. (1) All citizens shall have the right (a) to freedom of speech and expression;….”.
[4] Devidas Ramachandra Tuljapurkar v. State of Maharashtra, (2015) 6 SCC 1, 84, para 141.
[5] Markandey Katju v. Lok Sabha, (2017) 2 SCC 384, 408, para 34. .
[6] (2011) 13 SCC 155, 156.
[7] Macmillan Dictionary <https://www.macmillandictionary.com/us/dictionary/american/call-out>.
[8] Anita Thakur v. State of J&K, (2016) 15 SCC 525, 533, para 12.
[9] (2018) 17 SCC 324, 366, para 54.
[10] Me Too movement, Wikipedia <https://en.wikipedia.org/wiki/Me_Too_movement>.
[11] Black Lives Matter, Wikipedia <https://en.wikipedia.org/wiki/Black_Lives_Matter>.
[12] State of Maharashtra v. Rajendra Jawanmal Gandhi, (1997) 8 SCC 386, 403, para 37.
[13] Sukhwinder Singh v. State of Punjab, 2008 SCC OnLine P&H 384.
[14] 2018 SCC OnLine Mad 13583.
[15] 2016 SCC OnLine Del 6329.
[16] Section 499 of the Penal Code, 1860.
